Utah Supreme Court weighs 'constitutional panel' lawmakers created to hear some cases

SALT LAKE CITY — The Utah Supreme Court is considering several challenges to a new state law allowing some cases to be moved to a special three-judge panel after hearing lengthy arguments from three sets of plaintiffs Monday.

The plaintiffs, which included those in ongoing cases on redistricting, abortion and the environment, sued earlier this year over a new law that lets the state request that lawsuits over potentially unconstitutional laws be sent to a so-called constitutional court of three random judges, rather than being heard by a single district court judge.

Utah's attorney general moved to have several cases moved to the new constitutional panels shortly after the law was passed and signed. The plaintiffs then sought to have the new laws put on hold.

Justices heard from attorneys for three groups of plaintiffs in several lengthy argument sessions Monday.

The arguments primarily centered around the powers Utah's Constitution gives lawmakers when it comes to changing court procedures. Plaintiffs argued that the laws creating the constitutional panels violate the separation of powers, while attorneys for the Legislature and the state said lawmakers have broad authority for enacting laws as they did.

Some of the new justices appointed by Gov. Spencer Cox this year appeared skeptical of some of the arguments by the plaintiffs, while others grilled lawyers for the state and Legislature over what limits lawmakers have when changing how the courts operate.

What powers does the Legislature have?

Arguments in several of the cases centered around what powers the state Constitution gives lawmakers when it comes to the courts. Article VIII of the Constitution outlines several powers, including that lawmakers can amend court Rules of Procedure with a vote of two-thirds of all members of the House and Senate.

Justices pressed lawyers over whether those powers are just examples of broader, implicit powers that lawmakers can exercise over the courts, or whether those are the only powers granted to lawmakers by the state's Constitution.

Camila Vega, who represented the Planned Parenthood Association of Utah, argued that the laws creating the constitutional panels run contrary to the Constitution because the powers to do so were not explicitly granted to lawmakers. Planned Parenthood Association of Utah has been suing the state over its near-total abortion ban since 2022. That law is on hold pending the outcome of the case.

But Justice Jay Jorgensen, who was sworn in in June, pushed back, saying Utah's Constitution sets limitations on what powers lawmakers can exercise, rather than granting them. Any powers not explicitly limited would be fair game.

Vega responded, saying that the Legislature generally has authority to do things "except as expressly or implicitly limited by the Constitution." She said Article VIII is one of those "implicit" limitations.

"If the Legislature's theory is correct that it has plenary authority over the judiciary ... all of those express grants of authority provided in Article VIII are completely superfluous," she said. "That's not how we read the Constitution."

Plenary authority "refers to complete and unrestricted authority granted to a person or entity," according to Cornell Law School's Legal Information Institute.

Granting powers? Or limiting them?

Lawyers for the state and Legislature generally agreed with Jorgensen.

"Utah's Constitution is not one of grant but of limitation," Erin Middleton, assistant solicitor general, argued in the Planned Parenthood case. "So in order for something to be unconstitutional, the court has to find that it is expressly prohibited."

Tyler Green, who represented the Legislature in the case over Utah's redistricting maps, said legislative powers can be exercised "unless there's some other constraint on them."

While questioning Middleton in the Planned Parenthood case, Associate Chief Justice Jill Pohlman returned to the Constitution, noting again that Article VIII outlines some specific powers given to courts and to the Legislature.

"The people, when they adopted that article of the Constitution ... it was essentially carving out things the Legislature can do," she said. "Why would they carve those out if the Legislature otherwise has plenary authority to regulate the courts?"

What's next?

The seven justices did not issue an opinion in any of the three cases before them on Monday, but took them under advisement to craft opinions. In the past, the court has sometimes taken several months between hearing arguments and issuing opinions.

Any opinion will likely send the cases back to lower courts for consideration on the merits.

In a statement Monday, the president and CEO of the Planned Parenthood Association of Utah said her organization seeks to ensure that cases "are heard by a valid court."

"The Legislature's attempt to meddle in the judicial process is yet another stark example of government overreach by the supermajority and Gov. (Spencer) Cox," Shireen Ghorbani stated. "Utahns deserve the right to a fair process and to their constitutionally protected freedom to make decisions about their bodies and futures."

Spokespersons for the Legislature did not respond to a request for comment on the ongoing litigation.

Related topics